ABHISHEK KUMAR SINGH versus G. PATTANAIK & ORS.

[2021] 5 S.C.R. 305

ABHISHEK KUMAR SINGH

G. PATTANAIK & ORS.

Contempt Petition (Civil) No. 625-626 of 2019

(Civil Appeal No. 11017-11018 of 2018)

JUNE 03, 2021

[A. M. KHANWILKAR AND B. R. GAVAI, JJ.]

Contempt of Court: Civil contempt – It is well settled thatcontempt action ought to proceed only in respect of establishedwilful disobedience of the order of the Court – In the instant case,the limited direction given by the High Court and not disturbed bythis Court was to permit the petitioners to work on the concernedposts and to pay them regular salary as and when the same accruesto them – Grievance of the petitioners in the first set of contemptpetitions was that the respondents have appointed them afreshinstead of reinstatement with continuity of service along with arrearsof wages and thus have wilfully violated the direction of this Court– The expression used is only “to permit the petitioners to work onthe posts” which were held by them at the time of their terminationand “to pay them regular salary month by month” and “as andwhen the same accrues to them” – It is not case of wilfuldisobedience of the orders of the Court.

Contempt of Court: Civil contempt – The second set of contemptpetitions, emanate from termination order issued by the respondents– These petitions essentially proceed on the allegation that therespondents committed wilful disobedience of the order of this Courtin not affording prior opportunity of hearing to the petitioners andsimilarly placed persons despite express direction contained in thesaid order – High Court had set aside the termination order issuedby the respondents, solely on the ground that it was in violation ofprinciples of natural justice – At the same time, liberty was given tothe respondents to pass fresh order in accordance with lawincluding by undertaking exercise of segregating the tainted fromthe untainted candidates – Had the respondents concluded that itwas possible to segregate tainted from untainted candidates, theywould have been obliged to comply with the directions given by the

CDE

AHigh Court and restated by this Court to afford prior opportunityof hearing to the petitioners and similarly placed persons beforepassing fresh, reasoned order – However, from the subjecttermination order which is speaking order, it is crystal clear thatafter due enquiry and taking into consideration all aspects of thematter, in particular the enquiry reports and the opinion of theBexperts including final report of SIT, the respondents were of theconsidered opinion that it was not possible to segregate tainted fromthe untainted candidates for reasons recorded in that order – Inlight of the conclusion reached by the respondents that it was notpossible to segregate the tainted from the untainted candidates, inClaw, it must follow that the respondents could annul the entireselection process and pass the impugned order without givingindividual notices to the petitioners and similarly placed persons –Thus, there was nothing wrong in respondents issuing the saidtermination order without affording prior opportunity to thepetitioners and similarly placed persons.D

Constitution of India: Arts 32 and 226 – If the terminationorder is assailed on the ground of violation of principles of naturaljustice or fundamental rights guaranteed under Part III of theConstitution, such grievance can be brought before theconstitutional Court including by way of writ petition under Art.32Eof the Constitution of India – It is different matter that this Courtmay be loath in entertaining the grievance directly under Art.32and instead relegate the petitioner(s) before the High Court to firstexhaust the remedy under Art.226 of the Constitution of India – Inthe present case, there are other proceedings pending in the formFof contempt petitions and transfer petition wherein the terminationorder is the subject matter – Thus, the arguments in these cases willbe overlapping – In that, the self-same order has been impugned inthe writ petition filed before this Court – The fact that other affectedsimilarly placed persons have filed writ petitions directly before the

High Court and which are stated to be pending, can be noGimpediment for this Court in entertaining and deciding the writpetition – For, the issue regarding the purport of orders passed bythis Court needs to be answered appropriately in contempt petitionsonly by this Court – It is not open to the High Court to interpret orexplain the order passed by this Court in previous proceedingsHbetween the parties – High Court can only follow the dictum of this

Court which is binding on it – Accordingly, the preliminary objectiontaken by the respondents regarding the maintainability of writpetition under Art.32 of the Constitution by similarly placed personsdirectly filed before this Court to assail the impugned order whichis also subject matter of second set of contempt petitions is notsustainable – Contempt of court.

Disposing the petitions, the Court

HELD: 1. It is well-established position that if thetermination order is assailed on the ground of violation ofprinciples of natural justice or fundamental rights guaranteedunder Part III of the Constitution, such grievance can bebrought before the constitutional Court including by way of writpetition under Article 32 of the Constitution of India. It is adifferent matter that this Court may be loath in entertaining thegrievance directly under Article 32 and instead relegate thepetitioner(s) before the High Court to first exhaust the remedyunder Article 226 of the Constitution of India. That is also becausethis Court will then have the advantage of the judgment of theHigh Court on relevant aspects. In other words, it is not questionof maintainability of writ petition, but one of exercise of discretionwith circumspection in entertaining writ petition under Article32 in such matters. Further, in the present case, there are otherproceedings pending in the form of contempt petitions and atransfer petition wherein the termination order dated 02.03.2020is the subject matter. Thus, the arguments in these cases will beoverlapping. In that, the self-same order has been impugned inthe writ petition filed before this Court. The fact that other affectedsimilarly placed persons have filed writ petitions directly beforethe High Court and which are stated to be pending, can be noimpediment for this Court in entertaining and deciding the writpetition. For, the issue regarding the purport of orders passedby this Court needs to be answered appropriately in contemptpetitions only by this Court. It is not open to the High Court tointerpret or explain the order passed by this Court in previousproceedings between the parties. The High Court can only followthe dictum of this Court which is binding on it. Accordingly, thepreliminary objection taken by the respondents regarding themaintainability of writ petition under Article 32 of the Constitution

Aby similarly placed persons directly filed before this Court toassail the impugned order dated 2.3.2020, which is also subjectmatter of second set of contempt petitions is not sustainable.[Para 56][340-C-H]

2.1 The grievance of the petitioners is that the unambiguousBdirection given by the High Court and upheld by this Court wasto reinstate the petitioners on the same position with full backwages. The respondents were, therefore, obliged to issue orderof reinstatement with continuity of service and back wages. Theargument is attractive at the first blush, but on deeper scrutinyof the orders passed by the High Court and finally by this Court,Cit is noticed that the direction is limited to permit the petitionersto work on the posts of Assistant Engineer (Civil), AssistantEngineer (Electric/Mechanical) and Assistant Engineer(iHighComputer Science and Electronics and Communication/Electrical and Electronics) and to pay them regular salary monthDby month as and when it becomes due and payable to them. Onsimilar lines, the High Court disposed of another writ petitionchallenging the termination order passed by the respondents. Inthese orders, the expression used by the High Court is “to permitthe petitioners to work on the concerned posts and to pay themregular salary as and when the same accrues to them”. PerusalEof order passed in review petition also does not indicate that theHigh Court expressly directed reinstatement of petitioners withcontinuity of service and back wages, as such. Even in the decisionof this Court dismissing the appeals filed by respondents, no suchdirection has been issued. The limited direction is that the

Frespondents must first act upon the decision of the High Courtdated 28.11.2017 and only thereafter proceed in the matter inaccordance with law by passing fresh, reasoned order. [Para58][341-C-G; 342-C-E]

2.2 After cogitating over the orders passed by the HighGCourt and this Court, it becomes amply clear that the High Courthad quashed and set aside the first termination order solely onthe ground that it was passed in violation of principles of naturaljustice and further observed that the selection as whole wasnot liable to be cancelled without undertaking an exercise toseparate the tainted candidates from the untainted. While soH

observing, it was made clear that the respondents were free topass fresh, reasoned order in accordance with law. [Para 59][342-E-F]

2.3 The explanation offered by the respondents is acceptedthat going by the text of the orders passed by the High Court andthis Court, it was open to the respondents to issue order to re-engage the petitioners on the same posts from the date of orderand to pay them regular salary month by month thereafter or asand when it would accrue to them. The orders passed by theHigh Court and this Court, do not contain explicit direction toreinstate the petitioners with continuity of service and back wagesas such. Instead, the expression used is only “to permit thepetitioners to work on the posts” which were held by them at thetime of their termination and “to pay them regular salary monthby month” and “as and when the same accrues to them”. Thusunderstood, it is not case of wilful disobedience of the orders ofthe Court. Arguendo, the interpretation as propagated by thepetitioners of the stated orders dated 28.11.2017 passed by theHigh Court and 16.3.2018 of this Court, is possible view. Beinganother possible view, the benefit must then be given to therespondents. For, it would certainly not be case of wilfuldisobedience. It is well settled that contempt action ought toproceed only in respect of established wilful disobedience of theorder of the Court The limited direction given by the High Courtand not disturbed by this Court was to permit the petitioners towork on the concerned posts and to pay them regular salary asand when the same accrues to them, the plea under considerationneeds to be recorded only to be rejected. The case at hand doesnot qualify the test of contumacious, much less wilful disobedienceof the order of the Court by the officers of the respondents assuch. [Paras 60, 61, 62, 63, 64][342-G-H; 343-B-D; 345-B-C]

Sushila Raje Holkar v. Anil Kak (Retired) (2008) 14SCC 392 : [2008] 7 SCR 278; State of Bihar v. RaniSonabati Kumari AIR 1961 SC 221 : [1961] SCR 728;Maruti Udyog Limited v. Mahinder C. Mehta & Ors.(2007) 13 SCC 220 : [2007] 10 SCR 933; Ram Kishanv. Tarun Bajaj & Ors. (2014)16 SCC 204 : [2014] 1SCR 538; Director of Education, Uttaranchal & Ors.v. Ved Prakash Joshi & Ors. (2005) 6 SCC 98 : [2005]

ABC

310SUPREME COURT REPORTS

A1 Suppl. SCR 620; K.G. Derasari & Anr. v. Union ofIndia & Ors.(2001) 10 SCC 496; Deepali GunduSurwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. (2013) 10 SCC 324 : [2013] 9 SCR 1; P.Karupaiah (Dead) through Legal Representatives v.General Manager, Thruuvalluvar Transport CorporationBLimited (2018) 12 SCC 663 : [2017] 10 SCR 557 –relied on.

3.1 The second set of contempt petitions, emanate fromtermination order issued by the respondents. These petitionsessentially proceed on the allegation that the respondentsCcommitted wilful disobedience of the order of this Court in notaffording prior opportunity of hearing to the petitioners andsimilarly placed persons despite express direction contained inthe said order. The Court had set aside the termination orderissued by the respondents, solely on the ground that it was inDviolation of principles of natural justice. At the same time, libertywas given to the respondents to pass fresh order in accordancewith law including by undertaking exercise of segregating thetainted from the untainted candidates. Indeed, the Court expectedthat before taking any precipitative action against the petitioners,the respondents must afford opportunity of hearing to them. ThisEobservation is contextual. It would come into play dependent uponthe opinion eventually formed by respondents after dueconsideration of the material collated by them to distinguish thetainted and untainted candidates, was possible or otherwise. Hadthe respondents concluded that it was possible to segregateFtainted from untainted candidates, they would have been obligedto comply with the directions given by the High Court and restatedby this Court in order dated 15.11.2018, to afford prior opportunityof hearing to the petitioners and similarly placed persons beforepassing fresh, reasoned order. However, from the subject

termination order dated 2.3.2020, which is speaking order, it isGcrystal clear that after due enquiry and taking into considerationall aspects of the matter, in particular the enquiry reports and theopinion of the experts including final report of SIT, therespondents were of the considered opinion that it was notpossible to segregate tainted from the untainted candidates forHreasons recorded in that order. It is subject matter of challenge

in writ petitions pending before the High Court filed not only byAssistant Engineers, but also by Junior Engineers, Routine GradeClerks and others. In light of the conclusion reached by therespondents that it was not possible to segregate the tainted fromthe untainted candidates, in law, it must follow that the respondentscould annul the entire selection process and pass the impugnedorder without giving individual notices to the petitioners andsimilarly placed persons. [Paras 65, 66, 67][345-D-E; 346-C-G,H; 347-A-B]

Union of India & Ors. v. O. Chakradhar (2002) 3 SCC146 : [2002] 1 SCR 1091; Veerendra Kumar Gautam& Ors. v. Karuna Nidhan Upadhyay & Ors. (2016) 14SCC 18 : [2016] 7 SCR 223; Vikas Pratap Singh &Ors. v. State of Chhattisgarh & Ors. (2013) 14 SCC494 : [2013] 10 SCR 1114 – relied on.

3.2 Since the respondents have concluded that it was notpossible to segregate tainted from the untainted candidatesbecause of the reasons noted in the termination order dated2.3.2020, in law, there was nothing wrong in respondents issuingthe said termination order without affording prior opportunity tothe petitioners and similarly placed persons. Had it been caseof even tittle of possibility in segregating the tainted from theuntainted candidates, which exercise the respondents werepermitted to engage in, in terms of the decision of this Courtdated 15.11.2018, it would have been different matter. In thatcase alone, the petitioners and similarly placed persons couldcomplain of wilful disobedience of the order passed by this Courtdated 15.11.2018. Even the second set of contempt petitions inreference to the subject termination order dated 2.3.2020 beingin violation of direction given by this Court to afford opportunityto the petitioners vide order dated 15.11.2018, must fail. [Paras68 and 69][347-C-F]

3.3 While discharging the show-cause notices issued in theconcerned contempt petitions and disposing of all the contemptpetitions, it is deemed appropriate to relegate the petitioners inthe transfer petition and the writ petition filed in this Court, beforethe High Court to pursue their remedy under Article 226 of theConstitution to assail the order dated 2.3.2020 with furtherdirection that all petitions involving overlapping issues and

Areferred to in Annexure R-29 of the Supplementary Affidavit orany other writ petition pending or to be filed, list whereof befurnished by the parties to the High Court, for being heardanalogously. The High Court is requested to expeditiouslydispose of the writ petitions, leaving all contentions other thandecided in this judgment, open to the respective parties to beBraised before the High Court. The same be decided on its ownmerits as per law. Show-cause notices issued in the respectivecontempt petitions stand discharged. Contempt petitions aredismissed; The transfer petition stands rejected, as result ofwhich the writ petitions referred to therein will now proceed beforeCthe High Court in terms of this judgment; The writ petition isdisposed of with liberty to the petitioners therein includingapplicants in intervention/impleadment applications to pursuetheir remedy before the High Court by way of writ petition underArticle 226 of the Constitution, if so advised. That writ petitionbe decided on its own merits in accordance with law keeping inDmind the observations made in this judgment along with otherpending or fresh writ petitions involving similar issues; and theHigh Court is requested to take up all writ petitions involvingoverlapping issues together for analogous hearing expeditiously.[Paras 71, 72][348-D-H; 349-A-C]

EUttar Pradesh Jal Nigam & Ors. v. Ajit Singh Patel &Ors., (2019) 12 SCC 285 : [2018] 13 SCR 804; J.K.Synthetics Ltd. v. K.P. Agrawal & Anr. (2007) 2 SCC433 : [2007] 2 SCR 60; U.P. State Brassware Corpn.Ltd. & Anr. v. Uday Narain Pandey (2006) 1 SCC 479F: [2005] 5 Suppl. SCR 609; Haryana FinancialCorporation & Anr. v. Jagdamba Oil Mills & Anr. (2002)3 SCC 496 : [2002] 1 SCR 621; Union of India & Anr.v. K.M. Shankarappa (2001) 1 SCC 582 : [2000] 5Suppl. SCR 117; Union of India v. Ashok KumarAggarwal (2013) 16 SCC 147 : [2013] 12 SCR 629;GM.P. State Coop. Bank Ltd. Bhopal v. Nanuram Yadav& Ors. (2007) 8 SCC 264 : [2007] 10 SCR 307; NidhiKaim v. State of Madhya Pradesh & Ors. (2016) 7 SCC615 : [2016] 7 SCR 822; Kunhayammed & Ors. v. Stateof Kerala & Anr. (2000) 6 SCC 359 : [2000] 1 Suppl.HSCR 538; Khoday Distilleries Limited v. SriMahadeshwara Sahakara Sakkare Karkhane Limited,Kollegal (2019) 4 SCC 376 : [2019] 3 SCR 411; BiharFinance Service House Construction CooperativeSociety Ltd. v. Gautam Goswami & Ors. (2008) 5 SCC339 : [2008] 3 SCR 1137; Sudhir Vasudeva, Chairmanand Managing Director, Oil and Natural GasCorporation Limited & Ors. v. M. George Ravishekaran& Ors. (2014) 3 SCC 373 : [2014] 4 SCR 27; DineshKumar Gupta v.United India Insurance CompanyLimited & Ors. (2010) 12 SCC 770 : [2010] 13 SCR599; Kapildeo Prasad Sah & Ors. v. State of Bihar &Ors. (1999)7 SCC 569 : [1999] 1 Suppl. SCR 725;Mohd. Iqbal Khanday v. Abdul Majid Rather (1994) 4SCC 34 : [1994] 3 SCR 396; Romesh Thappar v. Stateof Madras [1950] SCR 594; Manohar Lal (Dead) byLRs. v. Ugrasen (Dead) by LRs.& Ors. (2010) 11 SCC557 : [2010] 7 SCR 346; Union of India & Ors. v. S.K.Kapoor (2011) 4 SCC 589 : [2011] 3 SCR 906; NishaDevi v. State of Himachal Pradesh & Ors. (2014) 16SCC 392 : [2014] 3 SCR 483; Indian Institute ofInformation Technology, Deoghat Jhalwa, Allahabad& Anr. v. Dr. Anurika Vaish & Ors. (2017) 5 SCC 660 :[2017] 3 SCR 691; P.N. Kumar & Anr. v. MuncipalCorporation of Delhi (1987) 4 SCC 609 : [1988] 1 SCR732; Kanubhai Brahmbhatt v. State of Gujarat 1989Supp (2) SCC 310 : [1987] 2 SCR 314; Kunga NimaLepcha & Ors. v. State of Sikkim & Ors. (2010) 4 SCC513 : [2010] 3 SCR 787; Confederation of All NagalandState Services Employees’Assn.& Ors. v. State ofNagaland (2006) 1 SCC 496; Amrit Lal Berry v.Collector of Central Excise, New Delhi & Ors. (1975)4 SCC 714 : [1975] 2 SCR 960; Dharampal SatyapalLimited v. Dy. Commissioner of Central Excise, Gauhati& Ors. (2015) 8 SCC 519 : [2015] 6 SCR 437; Unionof India & Ors. v. Rajesh P.U. Puthuvalnikathu & Anr.(2003)7 SCC 285 : [2003] 1 Suppl. SCR 883; RajeshKumar & Ors. v. State of Bihar & Ors. (2013) 4 SCC690 : [2013] 4 SCR 753; K. Channegowda & Ors. v.Karnataka Public Service Commission & Ors. (2005)

314SUPREME COURT REPORTS

A12 SCC 688 : [2005] 4 Suppl. SCR 126; ModernDental College and Research Centre & Ors. v. State ofMadhya Pradesh & Ors (2016) 7 SCC 353 : [2016] 3SCR 579; Inderpreet Singh Kahlon & Ors. v. State ofPunjab & Ors. (2006) 11 SCC 356 : [2006] 1 Suppl.SCR 772; Girjesh Shrivastava & Ors. v. State of MadhyaBPradesh & Ors. (2010) 10 SCC 707 : [2010] 12 SCR839; Joginder Pal & Ors. v. State of Punjab & Ors.(2014) 6 SCC 644 : [2014] 6 SCR 383; PurnenduMukhopadhyay & Ors. v. V.K. Kapoor & Anr. (2008)14 SCC 403 : [2007] 11 SCR 462 – referred to.

Case Law Reference

ABHISHEK KUMAR SINGH v. G. PATTANAIK & ORS.

AINHERENT JURISDICTION : Contempt Petition (Civil) Nos.625-626 of 2019. In Civil Appeal Nos. 11017-11018 of 2018.

From the Judgment and Order dated 15.11.2018 of this Hon’bleCourt in Civil Appeal Nos. 11017-11018 of 2018.

WithB

Contempt Petition (Civil) Nos. 642-643 of 2019 in C.A. Nos.11017-11018 of 2018,

Contempt Petition (Civil) Nos. 671-672 of 2019 in C.A. Nos.11017-11018 of 2018,CContempt Petition (Civil) Nos. 395-396 of 2020 in C.A. Nos.11017-11018 of 2018,

Contempt Petition (Civil) Nos. 408-409 of 2020 in C.A. Nos.11017-11018 of 2018,

Contempt Petition (Civil) Nos. 598-599 of 2020 in C.A. Nos.D11017-11018 of 2018,

Contempt Petition (Civil) Nos. 669-670 of 2020 in C.A. Nos.11017-11018 of 2018,

Contempt Petition (Civil) Nos. 671-672 of 2020 in C.A. Nos.E11017-11018 of 2018,

W.P. (C) No. 491 of 2020 and T.P. (C) No. 1209 of 2020.

Mukul Rohatgi, Ms. Meenakshi Arora, Ravindra Raizada, VikasSingh, Sr. Advs., Mohd. Nizam Pasha, Ms. Ranjeeta Rohatgi, Ms. SamtenDoma, Rajeev Kumar Dubey, Saurav Singh Chauhan, Ashiwan Mishra,FKamlendra Mishra, Ms. Vanshaja Shukla, Mritunjay Singh, Ms. AnujaPethia, Gaurav Mehrotra, Talha Abdul Rahman, Utsav Misra, AbhineetJaiswal, Mohd. Shaz Khan, Udit Atul Konkanthankar, Kumar Shivam,Mayank Sapre, Mohd. Atif, Rohit Anil Rathi, Nizam M. Pasha, Mrs.Pragya Baghel, Ms. Sansriti Pathak, Ms. Sakshi Kakkar, Advs. For theGappearing parties.The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. These cases essentially assail the orders dated 4.12.2018 and2.3.2020 issued by the Chief Engineer (A-2-1), Uttar Pradesh Jal Nigam,H

Lucknow[1], pursuant to the judgment of this Court dated 15.11.2018 inCivil Appeal Nos. 11017-11018/2018[2].This Court by the aforesaidjudgment, had directed the Uttar Pradesh Jal Nigam (the respondentcorporation) to comply with the judgment of the High Court of Judicatureat Allahabad[3] dated 28.11.2017 in batch of writ petitions (leading casebeing Writ-A No. 37143/2017) and pass fresh, reasoned order.

2. In pursuance of the aforementioned decision of this Court, theChief Engineer issued order dated 4.12.2018, thereby reengaging thepetitioners and other appointees to their previous place of posting.However, with caveat that the said appointment was subject to theliberty granted by this Court and that no arrears would be paid by therespondent corporation. The order of the Chief Engineer dated 4.12.2018is reproduced thus:

“The order dated 11.8.2017 passed by the Chief Engineer (A-2-1) U.P. Jal Nigam Lucknow has been set aside by Hon’ble HighCourt Allahabad by its order dated 28.11.2017 in W.P. No. A-37143/2017 and Review Application No. 2/2018 is also rejectedby Hon’ble High Court in its order dated 25.07.2018. The Hon’bleSupreme Court has upheld [sic] the above order passed byHon’ble High Court in Civil Appeal No. 11017-11018/2018 titledas U.P. Jal Nigam & Ors. v. Ajit Singh & Ors.

In the above context you are expected to perform your dutyat your previous posting place within 15 days from issuingof this order.

That it is being clarified that the said appointment will besubject to the liberty granted to Nigam, by the Hon’bleSupreme Court of India vide judgment dated 15.11.2018 in CivilAppeal No. 11017-11018/2018. The concerning paragraphs areextracted below:

“15. In view of the above, the challenge to the impugned judgmentdated 28[th] November, 2017 and 25[th] July, 2017 must fail but with aclarification that the competent authority is free to pass fresh,reasoned order in accordance with law.

1 For short, “the Chief Engineer” or “respondents”

2 Uttar Pradesh Jal Nigam & Ors. v. Ajit Singh Patel & Ors., (2019) 12 SCC 285

3 For short, “the High Court”

A16. We may not be understood to have expressed any opinioneither way on the merits of the course of action open to theappellants against the respondents including against the otherappointees under the same selection process. All questions in thatbehalf are left open.”[4]

BThat no Arrears prior to the fresh date of appointment willbe granted by Nigam.”

(emphasis supplied)

3. This order, according to the contempt petitioners, is in the teethof the decision of this Court dated 15.11.2018 and, therefore, theCrespondents be proceeded for having committed wilful disobedience ofthe order of this Court.

4. Thereafter, in terms of the liberty granted by this Court in theaforementioned judgment, the respondent corporation passed freshorder dated 2.3.2020, annulling the appointment of the petitioners andDsimilarly placed Assistant Engineers. In arriving at the fresh decision,reliance was placed upon the two internal inquiry reports dated 29.5.2017and 7.7.2017; expert reports — of IIIT Allahabad dated 11.9.2018 andIIT Kanpur dated 15.9.2018; CFSL report dated 11.12.2019; andrecommendation made by the Special Investigation Team (SIT) in itsEfinal report dated 22.1.2020 received by the respondent corporation on18.2.2020, to cancel the recruitment process due to corruption involved.The two expert reports given by Assistant Professor at IIT Kanpur andAssociate Professor at IIIT Allahabad dated 15.9.2018 and 11.9.2018respectively, pointed out that the audit trail/checksum and time stampsof the candidates were not made available and therefore, segregation ofFtainted and untainted candidates was not possible, in absence of primarydata. The operative portion of the order dated 2.3.2020 is reproducedbelow:

After the investigation conducted by the departmentGin the case, the reports of both the experts, the relevantrecommendation/conclusion of the SIT investigation andafter examination of the records, it has become clear thatthe selection process in question is void ab initio for theabove reasons.

H4 extracted in paragraph 14 ibid

In view of the above, the office memo number 08/A-2-1/2151-0201/17 dated 03.01.2017, memo no. 09/ A-2-1 / 2151-0201/17 dated 03.01.2017 and memo number 10/A-2-1/2151-0201/17dated 03.01.2017 is cancelled with effect from the date of issuei.e. date 03.01.2017 and the appointments in question are declaredvoid from the said date.

Due to the cancellation of the above office memorandumissued on dated 03.01.2017, the orders which were circulated on04.12.2018 to contribute again are effectively annuled.

The Assistant Engineer appointed under this process willget the protection of salary allowances etc. received so far andno recovery will be made from them. In the discharge ofdepartmental responsibilities, the administrative and financialfunctions performed by them so far will remain valid.”

(emphasis supplied)

5. This order has been assailed by the writ petitioner(s) directly inthis Court by way of Writ Petition (Civil) No. 491/2020. We are informedthat the same order has been assailed by similarly placed persons governedby the impugned order by way of writ petition(s) before the High Courtof Judicature at Allahabad and also at its Bench at Lucknow. Some ofthem have filed transfer petition before this Court, to transfer their WritPetition No. 13083/2020 (S/S) filed at Lucknow Bench of the High Courtand to hear it along with contempt petitions pending in this Court involvingoverlapping issues. Accordingly, the assail in these petitions is to theaforementioned order dated 4.12.2018, as well as, order dated 2.3.2020passed by the respondents.

6. In Contempt Petition (C) Nos. 625-626/2019, 642-643/2019and 671-672/2019[5], the grievance of the petitioners is that the respondentshave appointed them afresh instead of reinstatement with continuity ofservice along with arrears of wages and thus, have wilfully violated thedirection of this Court in judgment 15.11.2018, to give full effect to theHigh Court’s judgment dated 28.11.2017.

7. Whereas, in Contempt Petition (C) Nos. 395-396/2020, 408-409/2020, 598-599/2020, 669-670/2020 and 671-672/2020[6], the grievance

5 Collectively, “contempt petitions against non-payment of arrears”

6 Collectively, “contempt petitions against termination”

Ais that the order of the respondents dated 2.3.2020, have annulled theappointment of the petitioners, without affording opportunity of hearingto the petitioners in violation of the judgment of this Court dated 15.11.2018in Civil Appeal No. 11017-11018/2018.

8. In W.P. (C) No. 491/2020, the petitioners have prayed forBquashing of order dated 2.3.2020 passed by the respondent and toreinstate the petitioners with continuity of service and full back wages.While, in T.P. (C) No. 1209/2020, the petitioners seek to withdraw andtransfer to this Court, Writ Petition (C) No. 13083/2020 (Service Single),which is pending before the Lucknow Bench of the High Court, as theorder dated 2.3.2020 (impugned therein) is already subject matter inCsecond set of contempt petitions including W.P.(C) No. 491/2020 beforethis Court.

CONTEMPT PETITIONS AGAINST REENGAGEMENTWITHOUT CONTINUITY OF SERVICE AND ARREARS OFBACK WAGES VIDE ORDER DATED 4.12.2018:D

9. The factual background leading to filing of these contemptpetitions is that the respondents, vide order dated 11.8.2017, annulled therecruitment process pursuant to which the petitioners were employed,thereby terminating services of the petitioners. The said order waschallenged before the High Court and came to be set aside by way ofEcommon judgment dated 28.11.2017. The above judgment also directedthat the petitioners be permitted to work and be paid regular monthlysalary. The relevant extract of this decision is reproduced thus: -

FIn view of the above, we are of the considered opinion thatthe impugned order dated 11.8.2017 has been passed in violationof principles of natural justice without issuing notice and withoutaffording opportunity of hearing to the petitioners, no exercisewas undertaken to distinguish the case of tainted and non-taintedcandidates to arrive at the conclusion while passing the impugnedGorder as such the impugned order dated 11.8.2017 is not sustainableand is liable to be set aside.

Accordingly, the impugned order dated 11.8.2017 passedby the Chief Engineer Jal Nigam (Annexure-9 to the writ petition)is here by set aside.

The writ petitions succeed and are allowed with the furtherdirection to permit the petitioners to work on the post ofAssistant Engineer (Civil); Assistant Engineer (Electrical/Mechanical) and Assistant Engineer (Computer Science/Electronics and Communication/Electrical and Electronics)and to pay them regular salary month by month with theliberty to the respondents to pass fresh, reasoned order afterproviding opportunity of hearing to the petitioners and otheraffected parties on the basis of observations made above.

No order as to costs.”

(emphasis supplied)

10. Another writ petition filed by some of the petitioners beforeLucknow bench of the High Court, being Service Bench No. 19863/2017 was also disposed of on 12.12.2017, in terms of the judgment dated28.11.2017, in the following words:

Accordingly, this writ petition is also allowed in terms of thejudgment and order dated 28.11.2017 passed by this Court atAllahabad in the bunch of Writ Petitions, leading Writ Petitionbeing Writ-A No. 37143 of 2017, Ajit Singh Patel and others vs.State of U.P. and others with further direction to permit thepetitioners to work on the post of Assistant Engineer (Civil),Assistant Engineer (Electrical/ Mechanical) and AssistantEngineer (Computer Science/ Electronics andCommunication / Electrical and Electronics) and pay themregular salary as and when the same accrues to them with aliberty to the respondents to pass fresh reasoned order afterproviding opportunity of hearing to the petitioners and other partieson the basis of the observations made by this Court at Allahabadin the judgment and order dated 28.11.2017 (supra).

(emphasis supplied)

11. Upon failure of the respondents to act upon the directionspassed in judgment dated 28.11.2017, the petitioner(s) filed ContemptApplication (Civil) No. 6218/2017 before the High Court. Meanwhile,the respondents preferred SLP (C) Nos. 5410-5419/2018 before this

ACourt assailing the judgment dated 28.11.2017. The said special leavepetitions were disposed of by an order dated 16.3.2018, holding that therespondents may approach High Court for liberty to re-work the answersheets on the basis of corrections. The said order reads thus: -

“ORDER

Mr. Rakesh Dwivedi, learned senior counsel appearing forthe petitioners, points out that the petitioners having found out thatthere were defective questions and incorrect answer keys, theHigh Court should have permitted the petitioners to re-work themerit list. He submitted that the High Court has gone wrong inCinsisting for an individual notice in the factual matrix of this case.In this regard he has also placed reliance on judgment of thisCourt in Vikas Pratap Singh and Others v. State of Chhattisgarhand Others, reported in (2013) 14 SCC 494.

Mr. Mukul Rohatgi, learned senior counsel appearing forthe respondent(s), however, points out that whether the questionswere defective or key answers were incorrect are disputedquestion and, therefore, liberty should be granted to the respondentsto participate in the inquiry. He further submits that the decisionof this Court referred to by the learned senior counsel for thepetitioners may not apply to the facts of this case.

Be that as it may, having gone through the impugnedjudgment, we do not find that the door is yet closed. It isfor the petitioners, if they are so advised, to approach theHigh Court itself for liberty to re-work the answer sheetson the basis of the corrections, in case the High Court isFalso of the view that the corrections need to be made.

The special leave petitions are, accordingly, disposed of.Pending application(s), if any, shall stand disposed of.”

(emphasis supplied)

12. Upon disposal of the said special leave petitions, the respondentsfurnished an undertaking to the High Court in the Contempt Application(Civil) No. 6218/2017 that the judgment dated 28.11.2017 will be compliedwith on or before 15.5.2018. In the meantime, the respondents preferreda Review Application No. 2/2018 in Writ - No. 37143/2017, whereinHthe High Court, vide order dated 25.7.2018, refused to interfere with the

judgment dated 28.11.2017 and reiterated that it was open to therespondents to pass fresh order. This order dated 25.7.2018 readsthus: -

“The Managing Director, U.P. Jal Nigam, Lucknow and the ChiefEngineer, U.P. Jal Nigam, Lucknow have both filed an applicationfor the review of the judgement and order dated 28.11.2017 bywhich bunch of these writ petitions were finally decided.

The submission of learned Advocate General of State of U.P. isthat the applicants be granted liberty to segregate tainted anduntainted candidates in passing fresh order for which liberty hasbeen given.

The order impugned in the writ petitions was of 11.08.2017 passedby the Chief Engineer, Jal Nigam which cancels the entireselection.

In allowing the petition, we have held that the orderimpugned in the writ petition has been passed in violationof principles of natural justice and that the selection as awhole was not liable to be cancelled without undertakingany exercise to separate the tainted candidates from theuntainted one’s. The court in the end while allowing thewrit petitions had permitted the applicants to pass freshreasoned order after providing opportunity of hearing tothe petitioners and the other affected parties keeping inview the observations made in the judgment.

The applicants till date have not passed any fresh order.

In passing the fresh order they may consider each and everyaspect of the matter and they do not require any permissionof the court for the manner in which they would pass thefresh order.

In view of above, we do not consider that any liberty for theabove purpose is needed from the court.

We do not find any apparent error in the judgment and order whichis sought to be reviewed.

The Review Application stands disposed of.”

(emphasis supplied)

A13. Since the undertaking filed in Contempt Application (Civil)No. 6218/2017 was not complied with even after the disposal of thereview petition, the High Court by order dated 6.8.2018, directed thatupon failure to file compliance affidavit before next date of hearing, thepresence of the respondents would be required for framing of chargesof contempt. Likewise, in another contempt petition before the LucknowBbench of the High Court (against non-compliance of judgment dated12.12.2017), similar order was passed on 7.8.2018.

14. The respondents carried the matter in appeal before this Courtvide Civil Appeal Nos. 11017-11018/2018, impugning the judgment andorders dated 28.11.2017 passed in Writ-A No. 37143/2017 and also datedC25.7.2018 in Review Application No. 2/2018. It may be useful to advertto an interim order passed by this Court in the stated appeal, dated20.8.2018, which may have some bearing on the grounds underconsideration. The same reads thus: -

“The only liberty granted to the petitioners and asDrightly understood by the learned Advocate Generalappearing for the State was to segregate the tainted fromthe untainted as per Order dated 16.03.2018.

We direct the petitioners to file report, in sealed cover,within one month from today, as to what steps have been takenEpursuant to the Judgment dated 28.11.2017 passed by the HighCourt and the order dated 16.03.2018 by this Court in the SpecialLeave Petition.

List on 20.09.2018.

FThe petitioners may approach the High Court and seek forextension of time.”

(emphasis supplied)

Be that as it may, the decisions of the High Court referred toabove stood confirmed by this Court vide order dated 15.11.2018, givingGliberty to the respondent(s) to pass fresh, reasoned order. The relevantportion of the decision of this Court reads thus: -

“14. The limited plea taken before this Court as noted inthe first paragraph of order dated 16[th] March, 2018 was toallow the appellants to re-work the question and answerHsheets and revise the merit list and issue fresh, reasoned

order after providing opportunity of hearing to the affectedcandidates. That option has been kept open. It is for theappellants to pursue the same. In other words, theappellants must, in the first place, act upon the decision ofthe High Court dated 28[th] November, 2017 whereby theorder passed by the Chief Engineer dated 11[th] August, 2017has been quashed and set aside. The appellants may thenproceed in the matter in accordance with law by passing afresh, reasoned order. Indeed, while doing so, theappellants may take into consideration the previous inquiryreports as also all other relevant material/documents whichhave become available to them. We make it clear that wehave not dilated on the efficacy of the opinion given by theexperts of the “IIIT Allahabad and IIT Kanpur”.

15. In view of the above, the challenge to the impugned judgmentdated 28[th ]November, 2017 and 25[th] July, 2017 must fail but witha clarification that the competent authority of Nigam is freeto pass fresh, reasoned order in accordance with law.

16. We may not be understood to have expressed any opinioneither way on the merits of the course of action open to theappellants against the respondents including against the otherappointees under the same selection process. All questions in thatbehalf are left open.”

(emphasis supplied)

15. After the judgment of this Court dated 15.11.2018, the HighCourt in the Contempt Application (Civil) No. 6218/2017, vide orderdated 26.11.2018, directed the respondents to comply with the judgmentdated 28.11.2017 in the first instance. An order of even date was madein Contempt No. 1428/2018 by the Lucknow bench of the High Court onsimilar lines.

16. In terms of the directions of this Court in judgment dated15.11.2018 and that of High Court in the two orders dated 26.11.2018,the respondents passed the impugned order dated 4.12.2018 (reproducedin paragraph No. 2 above), reengaging the petitioners, albeit, withoutcontinuity of service and arrears. The respondents also filed affidavit ofcompliance before the High Court.

A17. In Contempt Application No. 6218/2017, the petitioner filedobjections to the said affidavit of compliance on 10.12.2018 on the groundthat withholding the payment of arrears is directly in teeth of the judgmentdated 28.11.2017, as confirmed by this Court vide judgment dated15.11.2018 and thus, it amounts to wilful and deliberate disobedience ofthe order of the Court.B

18. Similarly, in Contempt No. 1428/2018, the objections werefirst noted in order dated 17.12.2018 and then, detailed affidavit ofobjections was filed on 21.1.2019. The High Court, vide order dated22.1.2019, observed that the reinstatement should be followed by paymentof full back wages and directed the respondents to pay the same withinCthree months. The relevant portion of the said order is reproduced thus:

The Supreme Court has observed in the case of Deepali GunduSurwase[7] that reinstatement ordinarily should be followed byDpayment of full back wages.

It is not the case of the respondents that the termination order hasnot been set aside by this Court. It is also not the case of therespondents that the petitioners have been gainfully employeeduring the period that they remained out of service due toEtermination order which has ultimately been set aside. Therefore,the respondents are directed to give arrears of salary as are dueto the petitioner after termination order is set aside by this Court.The back wages of the petitioners in compliance of the orderspassed by this Court in writ jurisdiction shall be paid to the petitionerwithin period of three months.

List this matter after three months on 29.4.2019 by which date ifall arrears of salary are not paid, then the Managing Director ofU.P. Jal Nigam shall appear in person to assist this Court.”

19. Thereafter, by order dated 1.4.2019, the High Court recordedthat the respondents are prima facie guilty of wilful and deliberateGdisobedience and directed their presence before the Court on next dateof hearing, for framing charge. The respondents assailed the said orderby way of SLP(C) No. 10774/2019. This Court, vide order dated7.5.2019, observed that after the decision in Civil Appeal No. 11017-7 Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors.H(2013) 10 SCC 324

11018/2018, the contempt petitions cannot be continued before the HighCourt and be deemed to have been withdrawn to this Court. Libertywas granted to the petitioners to pursue other remedies as per law againstthe impugned orders.

20. The respondents had challenged the High Court’s order dated22.1.2019 by way of SLP (C) Diary No. 15756/2019, wherein this Courtby order dated 10.5.2019, had followed the order passed in SLP (C) No.10774/2019 to withdraw the contempt petition.

21. In these circumstances, the present contempt petitions inreference to the order dated 4.12.2018 regarding reengagement withoutcontinuity of service and arrears of back wages, arise for ourconsideration.

22. The thrust of the argument of the petitioners in these petitionsis that the effect of judgment of High Court in setting aside the terminationorder dated 11.8.2017, as upheld by this Court is that the terminationorder stood effaced in its entirety. As such, it was necessary to issue aformal order of reinstatement along with continuity in service and arrearsof pay for the relevant period. It is not open to the respondents to giveany other interpretation. It was then urged that the petitioners were notgainfully employed elsewhere between the dates of termination andreinstatement and therefore, were entitled to back wages. In support,reliance has been placed upon the decision of this Court in DeepaliGundu Surwase[8]. Further, it was submitted that denial of back wageswould amount to giving premium to the respondents for their wrongdoings.It was also pointed out that in Deepali Gundu Surwase[9], the judgmentof this Court in J.K. Synthetics Ltd. v. K.P. Agrawal & Anr.[10], whichhas been relied upon by the respondents, was held to be not good law.23. On the other hand, the respondents would submit that neitherthe High Court in its judgment dated 28.11.2017 nor this Court in itsjudgment dated 15.11.2018 had directed payment of arrears. Reliancewas then placed on the decisions of this Court in J.K. Synthetics Ltd.[11]and U.P. State Brassware Corpn. Ltd. & Anr. v. Uday NarainPandey[12], to submit that arrears cannot be claimed as matter of right

8 supra at Footnote No. 7

9 supra at Footnote No. 7

10 (2007) 2 SCC 433

11 supra at Footnote No. 10

12 (2006) 1 SCC 479

Aupon reinstatement, unless it has been expressly granted by the Court.In that, the petitioners are not entitled to arrears. Further, the petitionerscannot now claim arrears as it would amount to claiming fresh reliefand is beyond the scope of contempt proceedings, whilst placing relianceupon the decision of this Court in Director of Education, Uttaranchal& Ors. v. Ved Prakash Joshi & Ors.[13] It is urged that the petitionersBhad accepted the terms of re-engagement without any demur andtherefore it was not open to them to claim back wages.

CONTEMPT PETITIONS AGAINST FRESHTERMINATION ORDER DATED 2.3.2020:

C24. The fresh termination order dated 2.3.2020 came to be passedpursuant to the liberty given by this Court, leading to filing of the presentpetitions. The background facts are that there were several lapses byfew officials of the respondent corporation and M/s. Aptech PrivateLimited (the testing agency) in relation to the selection process for fillingup 122 posts of Assistant Engineers (113 - Civil, 5 - Electrical/MechanicalDand 4 - Electrical and Electronics/Electronics and Communication/Computer Science). That as per the agreement between the respondentcorporation and the testing agency, the testing agency was required todisplay the answer key for three days and to take remedial action on theobjections received. Further, the testing agency was also required toEretain the data pertaining to the examination for at least one year. Thetesting agency breached the aforesaid conditions and interviews wereconducted, without confirming if the answer key was uploaded or not.The interviews of 34,158 candidates were conducted in tearing haste on30.12.2016 and 31.12.2016 and the final result was released on 3.1.2017,and the appointments were made on the same day i.e., 3.1.2017. SinceFnon uploading of the answer key had deprived the candidates of theopportunity to file objections, the unsuccessful candidates approachedthe High Court alleging that the recruitment process was not transparentand was replete with several illegalities and irregularities. The High Court,in Writ Petition Nos. A/15948/2017 and 9794/S.B./2017 (preferred byGunsuccessful or non-selected candidates), directed the respondentcorporation to inquire into the said grievance and ensure that appropriateaction is taken. Accordingly, two separate inquiries were conducted bythe officers wherein several irregularities were found. On the basis ofthese inquiries, the entire selection process was declared void-ab-initio

and an order to that effect was passed on 11.8.2017. The said orderlater on came to be set aside vide judgment dated 28.11.2017 of theHigh Court.

25. Meanwhile, complaint was received by the U.P. Government(Home Department) in regard to various examinations pertaining torecruitment to several posts (including the present recruitment process).The government forwarded the same to SIT for investigation. The SITin its initial enquiry found that the testing agency had removed the entiredata pertaining to the present recruitment process from the main server,in violation of the condition to store it for year. The said fact was alsoadmitted by the testing agency. Therefore, in absence of original data,assistance of the Directors of IIT Kanpur and IIIT Allahabad was soughtto segregate the tainted and untainted candidates. The finding in the twoexpert reports, inter alia, was that the response sheet was uploadedafter long gap after the conclusion of the test which casts doubt ofmanipulation in the response sheets. Further, the data provided by thetesting agency did not contain the Timestamps and Mouse Clicks of thecandidates and there is no mention of the Audit Trail/Checksum.Therefore, the authenticity of the answers of the candidates could notbe verified and certified. Moreover, since primary data was not availableand the data stored in the CD could not be authenticated, it was notpossible to segregate the tainted and untainted candidates.

26. In the meantime, this Court in Civil Appeal No. 11017-11018/2018 (against judgment dated 27.11.2017 and judgment in review dated25.7.2018), had observed that the expert reports were not available whilepassing order dated 11.8.2017 and gave liberty to pass fresh reasonedorder by considering the previous inquiry reports and other data thatbecomes available to the respondents.

27. In separate proceedings pending before the High Court inW.P. No. 12222/2017 (against recruitment for other posts), the Courtpassed an order dated 21.5.2019 that it was for the respondent corporationto decide to annul the entire selection process if the segregation cannotbe undertaken. The said order was upheld by the High Court in SpecialAppeal (Defective) No. 625/2019 and 626/2019 (intra court appeals) byan order dated 31.7.2019. Furthermore, the SIT sent its final report dated22.1.2020 to the Government, which was made available to the respondentcorporation on 18.2.2020. The said report mentions that the testing agencyhad removed primary data from the cloud server in furtherance of

Acriminal conspiracy and recommended to consider cancelling all theappointments made in the exams conducted by the testing agency(including for the post of Assistant Engineer). In view of the aforesaid,and in exercise of the liberty granted by this Court, the order dated2.3.2020 was passed on the aforesaid findings. Aggrieved therefrom,the present contempt petitions have been filed.B

28. The case of the petitioners is that the High Court and also thisCourt had held that the termination order dated 11.8.2017, terminatingthe services of the petitioners (and other appointees) en masse, wasinvalid as it was passed without adhering to the principles of naturaljustice. However, the respondent corporation had yet again passed theCorder dated 2.3.2020 without following the principles of natural justice.By doing so, the respondent corporation in effect has restored thetermination order dated 11.8.2017, under the guise of the liberty grantedby this Court. The same cannot be countenanced.29. It was urged that the decision of this Court dated 15.11.2018Dcontained categorical direction for the respondent corporation to passa fresh reasoned order after providing an opportunity of hearing to theaffected parties. However, the impugned order had been passed inviolation thereof. In support, reliance is placed on the decision of thisCourt in Haryana Financial Corporation & Anr. v. Jagdamba OilEMills & Anr.[14] to contend that the judgments are not to be read likestatutes. It was then urged that liberty to pass fresh order ‘in accordancewith law’ cannot be stretched to such an extent that would circumventcompliance with principles of natural justice.

30. It was contended that the reliance placed by the respondentsFupon decisions of High Court in W.P. No. 12222/2017 and Special Appeal(Defective) No. 625/2019 and 626/2019 is misplaced and untenable asthe same has been done only to overcome the orders of this Court. Itwas submitted that the executive cannot sit in appeal or revision overthe judicial orders. Reliance is placed on the decision of this Court inUnion of India & Anr. v. K.M. Shankarappa[15] and Union of India v.GAshok Kumar Aggarwal[16], to contend that an attempt to renew anorder which had been quashed by the Court, would amount to legalmalice.14 (2002) 3 SCC 49615 (2001) 1 SCC 582H16 (2013) 16 SCC 147

31. Per contra, the respondents would submit that the judgmentdated 15.11.2018 had directed the respondents to act upon the HighCourt’s judgment dated 28.11.2017, wherein the petitioners werepermitted to work on the post of Assistant Engineers. The respondentsduly complied with the aforementioned judgment of this Court, byappointing the petitioners vide order dated 4.12.2018. It was then urgedthat this Court had granted liberty to the respondents to proceed in thematter in accordance with law. Therefore, contempt action cannot bemaintained in respect of order dated 2.3.2020 in absence of any specificdirection to afford opportunity to the petitioners despite the conclusionand opinion recorded by the competent authority that segregation oftainted and the untainted was not possible. The respondents contendthat in such case the entire selection process stood vitiated and nonotice/opportunity need be given to the petitioners. Reliance is placedupon decisions of this Court in Union of India & Ors. v. O.Chakradhar[17], Veerendra Kumar Gautam & Ors. v. Karuna NidhanUpadhyay & Ors.[18], M.P. State Coop. Bank Ltd., Bhopal v. NanuramYadav & Ors.[19], Nidhi Kaim v. State of Madhya Pradesh & Ors.[20],Kunhayammed & Ors. v. State of Kerala & Anr.[21] and KhodayDistilleries Limited v. Sri Mahadeshwara Sahakara SakkareKarkhane Limited, Kollegal[22] to contend that the respondents havenot violated the judgment dated 15.11.2018. In law, the decision of HighCourt dated 28.11.2017 had merged in the judgment of this Court dated15.11.2018. It was then submitted that no additional direction can begiven in contempt proceeding as the same would amount to exerciseof review jurisdiction. In support of this plea, reliance is placed upon thedecisions in Bihar Finance Service House Construction CooperativeSociety Ltd. v. Gautam Goswami & Ors.[23]and Sudhir Vasudeva,Chairman and Managing Director, Oil and Natural Gas CorporationLimited & Ors. v. M. George Ravishekaran & Ors.[24]. It was thenurged that civil contempt would require wilful disobedience. Passing oforder dated 2.3.2020, assuming it to be case of disobedience, the same

17 (2002) 3 SCC 146

18 (2016) 14 SCC 18

19 (2007) 8 SCC 26420 (2016) 7 SCC 61521 (2000) 6 SCC 35922 (2019) 4 SCC 37623 (2008) 5 SCC 33924 (2014) 3 SCC 373

Acannot be termed as wilful. Thus, no contempt action can be maintained.Reliance was placed on decision of this Court in Ram Kishan v. TarunBajaj & Ors.[25], Dinesh Kumar Gupta v. United India InsuranceCompany Limited & Ors.[26] and Kapildeo Prasad Sah & Ors. v. Stateof Bihar & Ors.[27]. It was then submitted that the implementation oforders can be insisted depending on its practicability. But, in the factBsituation of this case, giving notice to the petitioners was not practical.Reliance is placed upon the decision of this Court in Mohd. IqbalKhanday v. Abdul Majid Rather[28].

RE: W.P. (C) No. 491/2020

C32. W.P.(C) No. 491/2020 is filed for quashing and setting asidethe termination order dated 2.3.2020 and to direct the respondents toreinstate the petitioners with full back wages and continuity of service.Several applications were filed in the above petition seeking impleadmentas parties. I.A. No. 116777/2020, I.A. No. 106077/2020 and I.A. No.93552/2020 have been filed by the successful candidates. Whereas, I.A.DNo. 50899/2020 is filed by the candidates who were declared unsuccessfulor non-selected in the initial merit list, but whose score was revised afterconsidering the objections to the answer key, so as to enter the merit list.An application for directions being I.A. No. 50896/2020 was filed by theaforesaid unsuccessful candidates seeking to be appointed as per theErevised merit list and to pay arrears from January, 2017 when they oughtto have been appointed. The applications of the unsuccessful or non-selected candidates shall be dealt with little later.

33. The ground for filing the above writ petition is that thetermination order dated 2.3.2020 is violative of Articles 14, 19(1)(g) andFArticle 21 of the Constitution of India. That, the respondent corporationhad malafidely tried to improve its case at every stage by adding newgrounds. For instance, in the first inquiry report dated 29.5.2017, theChief Engineer stated that the sanction for few posts was made byBoard of Directors of the respondent corporation, which was notcompetent to do so, as only the Government had authority to sanctionGposts. Further, the candidates with lower marks in the written test weregiven higher marks in the interview and that the entire selection process

25 (2014) 16 SCC 20426 (2010) 12 SCC 77027 (1999) 7 SCC 569H28 (1994) 4 SCC 34

was rushed through within period of less than one month from the dateof advertisement issued on 13.12.2016 and appointment orders issuedon 3.1.2017, presumably because election code of conduct was about tocome into force. Thereafter, in second inquiry report dated 7.7.2017, theChief Engineer added that the respondent corporation could not haverecruited without permission of the Finance Department of theGovernment in view of the loan of Rs.300 crores given by the Governmentto the respondent corporation. Further, the examination results werepublished without inviting objections, some of the answers in the answerkey and some questions in the question paper were wrong and that answersheets of 4 successful candidates were identical.

34. Then, in the termination order dated 11.8.2017, it was addedthat the permission of Election Commission of India should have beentaken as the Model Code of Conduct had come into effect prior to joiningdate. Before the High Court, it was urged that the respondent corporationwas facing shortage of funds and was not in position to pay so manyadditional employees and that provision was not made for reservation ofposts in accordance with law. Thereafter, in the review application, theground taken was that on the basis of revaluation, some of the selectedcandidates would not even have been eligible for the interview.35. The petitioners would submit that the writ petition ismaintainable in view of violation of their fundamental rights under Articles14, 19(1)(g) and 21 of the Constitution. Reliance is placed upon thedecision of this Court in Romesh Thappar v. State of Madras[29]. It wasurged that the action of the respondents in adding new grounds at eachstage shows that the respondent corporation despite being ‘State’ underArticle 12 of the Constitution, has been prosecuting the matter like adesperate private litigant, under dictation.

36. The petitioners would then urge that the impugned order hadbeen passed by the respondents whilst relying upon the opinion of expertsthat there was possibility that the response filed by certain candidates‘might have been doctored’, which is mere speculation, without anydata in its support. It was submitted that the data upon which therespondents relied, to pass the order dated 2.3.2020, was available evenat the time of passing of the judgment dated 15.11.2018 by this Court;and is in the nature of ‘being repacked in fresh package’ and the same

Acannot be permitted as per decision of this Court in Manohar Lal (Dead)by LRs. v. Ugrasen (Dead) by LRs. & Ors.[30].

37. It was urged that the respondents deliberately did not ask thetesting agency for checksum data until one year period of storing hadexpired. It was then pointed out that the testing agency, in an affidavitBbefore the High Court (in W.P. (S/S) No. 7647/2020 – relating to anotherexamination), had stated certain facts concerning the present selectionprocess. Particularly, that the primary data was not deleted but merelymoved from the cloud server to data storage centre in accordance withits Data Retention Policy and is still available with the testing agencyand that the respondent corporation had never approached them forCobtaining the same. Therefore, the opinion given by the two experts wasbased on conjectures and surmises that the primary data is not available.

38. It was submitted that the SIT Report dated 22.1.2020 and thereports of Central Forensic Science Laboratory (CFSL) dated 28.8.2019,19.11.2019, 11.12.2019 and 1.1.2020 (considered by the SIT in its report)Drelied upon by the respondents in passing the impugned order ought tohave been served upon the petitioners before taking any adverse actionagainst them, in light of dictum in Union of India & Ors. v. S.K.Kapoor[31]. Further, the SIT report is in the nature of final report by aninvestigative agency and cannot be treated as conclusive proof ofEmalpractices. Moreover, the petitioners cannot be made to suffer at thecost of any malfeasance by the testing agency.

39. It was urged that the documents relied upon by the respondentshave never been proved or subjected to scrutiny by fact-finding authorityor tribunal, nor had the petitioners been given an opportunity to meet theFassertions made therein. That the testing agency had by letter dated7.11.2017 intimated the SIT that primary data was stored in data storagefacility and not the hard drive, despite which, the SIT raided its office on10.9.2018 and seized random hard drives of ‘dump data’ and sent thesame to CFSL. Therefore, the very basis of CFSL’s analysis is flawed.

G40. Further, despite the finding in SIT report that the testing agencywas part of criminal conspiracy for deleting the primary data, therespondents continued to engage the testing agency for conductingexaminations. The respondent corporation procured letter dated

30 (2010) 11 SCC 557H31 (2011) 4 SCC 589

31.8.2020 from the Addl. Chief Secretary, Government of U.P.recommending to the DGP, SIT that the testing agency be blacklisted,about three years after the irregularities came to its knowledge, whichclearly demonstrates malafides. It was then submitted that there is nosubstance in the argument that the selection process was hastilycompleted as the same was in full compliance with the advertisementand applicable SoP and Rules of the respondent corporation. Moreover,the said argument was rejected by the High Court in judgment dated28.11.2017.

41. It was then urged that the only liberty granted to the respondentsis to rework the answer sheets based on the corrections, after givingcandidates an opportunity of hearing. Further, the respondent corporationhad failed to discharge the burden that the response sheets weremanipulated and argued of inability to verify the veracity of examinationprocess, which cannot be permitted.

42. The submission that principles of natural justice were violatedwas akin to the submissions made in the above contempt petitions. Itwas submitted that there can be no exception to the principle of audialter partem. Reliance is placed upon decision of this Court in NishaDevi v. State of Himachal Pradesh & Ors.[32]and Indian Institute ofInformation Technology, Deoghat Jhalwa, Allahabad & Anr. v. Dr.Anurika Vaish & Ors.[33] to submit that when termination order was setaside for not hearing the affected parties before passing it and liberty isgranted to pass fresh reasoned order, the employer-State cannot passanother fresh termination order without hearing the affected personsyet again.

43. On the other hand, the respondents would raise preliminaryobjection as regards the maintainability of the Writ Petition as the alternateremedy under Article 226 of the Constitution was not exhausted, whilstplacing reliance on decisions of this Court in P.N. Kumar & Anr. v.Muncipal Corporation of Delhi[34], Kanubhai Brahmbhatt v. State ofGujarat[35], Kunga Nima Lepcha & Ors. v. State of Sikkim & Ors.[36],Confederation of All Nagaland State Services Employees’ Assn. &

32 (2014) 16 SCC 392

33 (2017) 5 SCC 660

34 (1987) 4 SCC 609

35 1989 Supp (2) SCC 310

36 (2010) 4 SCC 513

AOrs. v. State of Nagaland[37] and Amrit Lal Berry v. Collector of CentralExcise, New Delhi & Ors.[38]. It was also pointed out that parties similarlyplaced to that of the petitioners filed writ petition before the High Courtbeing W.P. (C) No. 13083/2020 (Service Single) and even the petitionersought to have approached High Court.

B44. With reference to petitioners’ reliance on affidavit filed by thetesting agency, the respondents would submit that the onus was on thetesting agency to give correct and complete data to the SIT forinvestigation. It was pointed out that the SIT had recorded the statementof Mr. Vishvajeet Singh, Technical and Delivery Head of the testingagency, wherein he stated that the examination data was kept in theCcloud only for month, after which it was downloaded onto the ‘localenvironment’ - the hard disk. Further, the testing agency had itselfaccepted in the certificate provided to the SIT under Section 65-B of theIndian Evidence Act, 1872[39], that the original primary data had beendeleted and the backup data does not contain any system logs. And that,

Dthe deletion of primary server data made it impossible to re-analyse theresponse sheets using the secondary data provided in the form of CDs,as the same is not accurate. It was then urged that the respondentcorporation had taken prompt action against its officials involved in theirregularities committed in the recruitment process.

45. It was submitted that the respondents had rightly cancelledEthe entire recruitment process and terminated the services of all therecruits in accordance with law as the illegality was of such nature thatthe tainted candidates could not have been segregated from the untaintedand the veracity of the entire examination process was doubtful. Further,it was urged that if the tainted and untainted candidates could beFsegregated, the show cause notice would have been issued to theconcerned candidate. However, since the segregation was not possibleand did not take place, the entire recruitment process had to be cancelledin view of O. Chakradhar[40]. Thus, no individual show cause noticewas necessary in law. This submission of the respondents is similar to

the stand taken by them in the above contempt petitions.G46. It was then urged that even if an opportunity of hearing isgiven to the candidates, it would be an empty formality as the respondents

37 (2006) 1 SCC 496

38 (1975) 4 SCC 714

39 For short, ‘the 1872 Act’H40 supra at Footnote No. 17

do not have primary data to compare actual correct answers given bythe candidates, as it would be impossible to segregate the tainted anduntainted candidates in absence of the primary data. Even if an opportunityof hearing is granted, the decision of the respondent corporation wouldremain the same. Reliance in that regard was placed upon decision ofthis Court in Dharampal Satyapal Limited v. Dy. Commissioner ofCentral Excise, Gauhati & Ors.[41].

RE: IMPLEADMENT APPLICATIONS BY NON-SELECTED CANDIDATES:

47. Coming to the impleadment applications filed by non-selectedcandidates, their case is that upon objections raised by the candidatesthat the answer key was not released, the respondents had published theanswer sheet and answer key on 28.2.2017. The applicants found variouserrors therein and being aggrieved, they had filed W.P. Nos. 10667/2017and 21876/2017 before the High Court, wherein the High Court directedthe respondents to conduct an enquiry in the alleged irregularities.Pursuant thereto, an inquiry was conducted wherein the errors weretaken note of and accordingly, the testing agency had submitted revisedlist to the respondents. In that revised merit list, these applicants hadstood higher in the merit list than the appointees. The respondents, insteadof reworking the appointments in accordance with the revised list, hadannulled the entire selection process first vide order dated 11.8.2017(which was later set aside) and then again by order dated 2.3.2020.

48. These applicants would submit that various grounds noted bythe respondents in the order dated 2.3.2020 had already been rejectedby the High Court in its judgment dated 28.11.2017, whereby the earlierorder dated 11.8.2017 was set aside. The High Court in the said judgmenthad held that there was no prohibition imposed against appointment onregular selection in the model code of conduct and the post of AssistantEngineers were regular in nature. That the requirement mandating priorsanction of the State Government was not applicable to the present caseas the requirement was made by G.O. dated 13.12.2016 whereas theselection process in question had commenced on 19.11.2016. That thepermission to advertise the posts was made by the Chairman, whichwas ratified by the Board of Directors of the respondent corporation.The argument of malafide in the selection process was rejected by theHigh Court and the said judgment was upheld by this Court.

A49. It was urged that the testing agency undertook the exercise ofrectification of incorrect entries in the key and submitted report to therespondents dated 8.8.2017 containing the revised merit list and therefore,the only option available to the respondents was to act upon the revisedmerit list. It was submitted that cancellation of entire selection process(by order dated 2.3.2020) when it was merely case of certain infirmitiesBin the evaluation, would be unreasonable, arbitrary and disproportionate.In support of this plea, reliance is placed upon decisions of this Court inUnion of India & Ors. v. Rajesh P.U. Puthuvalnikathu & Anr.[42],Rajesh Kumar & Ors. v. State of Bihar & Ors.[43] and K.Channegowda & Ors. v. Karnataka Public Service Commission &COrs.[44].

50. It was then urged that the principle of proportionality has beenrecognised as an aspect of Article 14 by this Court in Modern DentalCollege and Research Centre & Ors. v. State of Madhya Pradesh &Ors.[45] and in view whereof, the cancellation of entire selection process,Dbeing disproportionate, is violative of Article 14.

51. Further, it was urged that even in the case of malpractice andmalafide, entire selection process should not be cancelled but the taintedand untainted candidates ought to be segregated. In support of this plea,reliance was placed on decisions of this Court in Inderpreet SinghEKahlon & Ors. v. State of Punjab & Ors.[46], Girjesh Shrivastava &Ors. v. State of Madhya Pradesh & Ors.[47] and Joginder Pal & Ors.v. State of Punjab & Ors.[48]. It was then urged that the mandate ofdecisions of High Court dated 28.11.2017 and 25.7.2018 and of this Courtdated 16.3.2018 and 15.11.2018 was to re-work the answer sheets anda limited liberty to that effect was given to the respondents. TheFapplicants would then take stand similar to that of the petitioners in theabove contempt petitions, to submit that the judgment of court has tobe understood in its entirety and cannot be read as statute, whilstrelying upon the decision of this Court in Purnendu Mukhopadhyay &

G42 (2003) 7 SCC 28543 (2013) 4 SCC 69044 (2005) 12 SCC 68845 (2016) 7 SCC 35346 (2006) 11 SCC 35647 (2010) 10 SCC 70748 (2014) 6 SCC 644H

Ors. v. V.K. Kapoor & Anr.[49]. Therefore, the order dated 2.3.2020passed by the respondents is against the mandate of the above judgments.

RE: TRANSFER PETITION:

52. In T.P. (C) No. 1209/2020, the petitioners have approachedthis Court under Article 139A for transfer/withdrawal of Writ Petition(C) No. 13083/2020 (Service Single) pending before the High Court tothis Court as the subject matter of the said writ petition (impugned orderdated 2.3.2020) is already pending challenge before this Court in W.P.No. 491/2020 and companion contempt petitions. In W.P. (C) No. 13083/2020 (Service Single) before the High Court, the petitioners have reliedupon opinion of their own expert, Dr. A.V. Subrahmanyam, AssistantProfessor at IIIT Delhi, who had discredited the IIT and IIIT reportsand opined that the ‘checksum’ method of fingerprinting not having beendeployed shall have no bearing on the candidates as they had no role toplay in the same.

53. These petitioners would submit that the issue of veracity andweight of experts shall be examined in departmental inquiry and cannotbe gone into before this Court. Further, the petitioners urge that theywould like to present their expert and to cross examine other experts, sothat the truth could be distilled. That the respondents ought to have hada departmental inquiry by giving the petitioners an opportunity to hear, sothat the parties could have led their evidence and the decision shouldhave been taken on the basis of the outcome of such inquiry.54. We have heard Mr. Mukul Rohatgi, Ms. Meenakshi Arora,Mr. Ravindra Raizada, learned senior counsel, Mr. Gaurav Mehrotra,Mr. Kumar Shivam and Mr. Rohit Anil Rathi, learned counsel - for thepetitioners; Mr. Nizam M. Pasha for the impleaded petitioners; Ms.Sanskriti Pathak, learned counsel for applicants (candidates successfulas per revised merit list); and Mr. Vikas Singh, learned senior counselfor the respondents.

55. The broad points that arise for our consideration are:

1. Whether the order dated 4.12.2018 passed by the respondentsis in the teeth of judgment of this Court dated 15.11.2018, requiringcompliance of judgment of High Court dated 28.11.2017, fordeliberate failure to reinstate with continuity of service and to payarrears to the petitioners?

2. Whether the termination order dated 2.3.2020 passed by therespondents is in wilful disobedience of and in the teeth of judgmentof this Court dated 15.11.2018, for not following the principles ofnatural justice and is thus non-est in law?

CONSIDERATION

56. At the outset, we deem it appropriate to first answer thepreliminary objection regarding maintainability of writ petition underArticle 32 of the Constitution of India. We have no hesitation in rejectingthis preliminary objection for more than one reason. It is well-establishedposition that if the termination order is assailed on the ground of violationCof principles of natural justice or fundamental rights guaranteed underPart III of the Constitution, such grievance can be brought before theconstitutional Court including by way of writ petition under Article 32 ofthe Constitution of India. It is different matter that this Court may beloath in entertaining the grievance directly under Article 32 and insteadrelegate the petitioner(s) before the High Court to first exhaust the remedyDunder Article 226 of the Constitution of India. That is also because thisCourt will then have the advantage of the judgment of the High Court onrelevant aspects. In other words, it is not question of maintainability ofwrit petition, but one of exercise of discretion with circumspection inentertaining writ petition under Article 32 in such matters. Further, in theEpresent case, there are other proceedings pending in the form of contemptpetitions and transfer petition wherein the termination order dated2.3.2020 is the subject matter. Thus, the arguments in these cases willbe overlapping. In that, the self-same order has been impugned in thewrit petition filed before this Court. The fact that other affected similarlyplaced persons have filed writ petitions directly before the High CourtFand which are stated to be pending, can be no impediment for this Courtin entertaining and deciding the writ petition. For, the issue regarding thepurport of orders passed by this Court needs to be answered appropriatelyin contempt petitions only by this Court. It is not open to the High Courtto interpret or explain the order passed by this Court in previousproceedings between the parties. The High Court can only follow theGdictum of this Court which is binding on it. Accordingly, we are notimpressed by the preliminary objection taken by the respondents regardingthe maintainability of writ petition under Article 32 of the Constitution bysimilarly placed persons directly filed before this Court to assail theimpugned order dated 2.3.2020, which is also subject matter of secondHset of contempt petitions.57. As aforesaid, we are dealing with two sets of contemptpetitions. The first set complains about non-compliance of order dated28.11.2017 passed by the High Court, which came to be upheld by thisCourt consequent to disposal of special leave petitions being SLP(C)Nos. 5410-5419/2018 vide order dated 16.3.2018, and more particularly,reiterated by this Court in its order dated 15.11.2018[50] directing therespondents to first act upon the decision of the High Court dated28.11.2017 and only thereafter proceed in the matter in accordance withlaw by passing fresh, reasoned order. It is not in dispute that after thejudgment of this Court dated 15.11.2018, consequential order waspassed by the High Court on 26.11.2018. The respondents thus issuedorder dated 4.12.2018 (reproduced in paragraph 2 above), reengagingthe petitioners on the concerned posts without continuity of service andarrears.

58. The grievance of the petitioners is that the unambiguousdirection given by the High Court and upheld by this Court was to reinstatethe petitioners on the same position with full back wages. No more andno less. The respondents were, therefore, obliged to issue order ofreinstatement with continuity of service and back wages. The argumentis attractive at the first blush, but on deeper scrutiny of the orders passedby the High Court and finally by this Court, it is noticed that the directionis limited to permit the petitioners to work on the posts of AssistantEngineer (Civil), Assistant Engineer (Electric/Mechanical) and AssistantEngineer (Computer Science and Electronics and Communication/Electrical and Electronics) and to pay them regular salary month bymonth as and when it becomes due and payable to them. That can bediscerned from the last paragraph of the order dated 28.11.2017(reproduced in paragraph 9 above). On similar lines, the High Courtdisposed of another writ petition challenging the termination order dated11.8.2017 passed by the respondents, vide order dated 12.12.2017(reproduced in paragraph 10 above). In these orders, the expressionused by the High Court is “to permit the petitioners to work on theconcerned posts and to pay them regular salary as and when the sameaccrues to them”. The order dated 28.11.2017 passed by the High Courtwas upheld by this Court on 16.3.2018. In that order, after recordingcontentions of both sides, while disposing of petitions it is observed asfollows: -

50 supra at Footnote No. 2

Be that as it may, having gone through the impugned judgment,we do not find that the door is yet closed. It is for the petitioners,if they are so advised, to approach the High Court itself for aliberty to re-work the answer sheets on the basis of the corrections,Bin case the High Court is also of the view that the correctionsneed to be made.

The respondents had, therefore, pursued review petition as perthe liberty given by this Court. The same came to be disposed of by theCHigh Court on 25.7.2018. On perusal of that order (reproduced inparagraph 12 above), there is nothing to indicate that the High Courtexpressly directed reinstatement of petitioners with continuity of serviceand back wages, as such. Even in the decision of this Court dismissingthe appeals filed by respondents, vide order dated 15.11.2018 (reproducedDin paragraph 14 above), no such direction has been issued. The limiteddirection is that the respondents must first act upon the decision of theHigh Court dated 28.11.2017 and only thereafter proceed in the matterin accordance with law by passing fresh, reasoned order.59. After cogitating over the orders passed by the High Court andEthis Court referred to above, it becomes amply clear that the High Courthad quashed and set aside the first termination order dated 11.8.2017solely on the ground that it was passed in violation of principles of naturaljustice and further observed that the selection as whole was not liableto be cancelled without undertaking an exercise to separate the taintedcandidates from the untainted. While so observing, it was made clearFthat the respondents were free to pass fresh, reasoned order inaccordance with law.

60. In light of the aforesaid discussion, we have no hesitation inaccepting the explanation offered by the respondents that going by thetext of the orders passed by the High Court and this Court, it was openGto the respondents to issue order (dated 4.12.2018) to reengage thepetitioners on the same posts from the date of order and to pay themregular salary month by month thereafter or as and when it would accrueto them. The orders passed by the High Court and this Court, asaforementioned, do not contain explicit direction to reinstate the petitionerswith continuity of service and back wages as such. Instead, the expressionH

used is only “to permit the petitioners to work on the posts” which wereheld by them at the time of their termination and “to pay them regularsalary month by month” and “as and when the same accrues to them”.Thus understood, it is not case of wilful disobedience of the orders ofthe Court.

61. Arguendo, the interpretation as propagated by the petitionersof the stated orders dated 28.11.2017 passed by the High Court and16.3.2018 of this Court, is possible view. Being another possible view,the benefit must then be given to the respondents. For, it would certainlynot be case of wilful disobedience as enunciated by this Court in SushilaRaje Holkar v. Anil Kak (Retired)[51]which follows the dictum of thisCourt in State of Bihar v. Rani Sonabati Kumari[52], PurnenduMukhopadhyay[53]and Maruti Udyog Limited v. Mahinder C. Mehta& Ors.[54].

62. It is well settled that contempt action ought to proceed only inrespect of established wilful disobedience of the order of the Court. ThisCourt in paragraph 12 of the decision in Ram Kishan[55] observed thus: -

“12. Thus, in order to punish contemnor, it has to be establishedthat disobedience of the order is “wilful”. The word “wilful”introduces mental element and hence, requires lookinginto the mind of person/contemnor by gauging his actions,which is an indication of one’s state of mind. “Wilful” meansknowingly intentional, conscious, calculated and deliberatewith full knowledge of consequences flowing therefrom. Itexcludes casual, accidental, bona fide or unintentional acts orgenuine inability. Wilful acts does not encompass involuntarily ornegligent actions. The act has to be done with “bad purposeor without justifiable excuse or stubbornly, obstinately orperversely”. Wilful act is to be distinguished from an act donecarelessly, thoughtlessly, heedlessly or inadvertently. It does notinclude any act done negligently or involuntarily. The deliberateconduct of person means that he knows what he is doingand intends to do the same. Therefore, there has to be

51 (2008) 14 SCC 392

52 AIR 1961 SC 221

53 supra at Footnote No. 49

54 (2007) 13 SCC 220

55 supra at Footnote No. 25

344SUPREME COURT REPORTS

Acalculated action with evil motive on his part. Even if thereis disobedience of an order, but such disobedience is the resultof some compelling circumstances under which it was not possiblefor the contemnor to comply with the order, the contemnor cannotbe punished. “Committal or sequestration will not be ordered unlesscontempt involves degree of default or misconduct.” (Vide S.BSundaram Pillai v. V.R. Pattabiraman[56], Rakapalli Raja RamGopala Rao v. Naragani Govinda Sehararao[57], NiazMohammad v. State of Haryana[58], Chordia Automobiles v. S.Moosa[59], Ashok Paper Kamgar Union v. DharamGodha[60], State of Orissa v. Mohd. Illiyas[61]and UniworthCTextiles Ltd. v. CCE[62]).”

(emphasis supplied)

It is useful to recall the exposition in Director of Education,Uttaranchal[63] and also in K.G. Derasari & Anr. v. Union of India &Ors.[64]; wherein this Court observed that in exercising contemptDjurisdiction, the primary concern must be whether the acts of commissionor omission can be said to be contumacious conduct of the party who isalleged to have committed default in complying with the directions givenin the judgment and order of the Court. Further, the Court ought not totake upon itself power to decide the original proceedings in manner notEdealt with by the Court passing the judgment and order. It is also notopen to go into the correctness or otherwise of the order or give additionaldirections or delete any direction, which course could be adopted only inreview jurisdiction and not contempt proceedings.

63. Reliance placed on Deepali Gundu Surwase[65]by theFpetitioners is inapposite. It was case of wrongful termination and entitledthe petitioner therein relief of back wages. The respondents have insteadrelied upon the exposition in P. Karupaiah (Dead) through Legal

56 (1985) 1 SCC 59157 (1989) 4 SCC 25558 (1994) 6 SCC 332G59 (2000) 3 SCC 28260 (2003) 11 SCC 161 (2006) 1 SCC 27562 (2013) 9 SCC 75363 supra at Footnote No. 1364 (2001) 10 SCC 49665 supra at Footnote No. 7H

Representatives v. General Manager, Thruuvalluvar TransportCorporation Limited[66 ]and J.K. Synthetics Ltd.[67]which has restatedthe legal position regarding back wages. It has been held that it is notautomatic or natural consequence of reinstatement.Suffice it to mentionthat for reasons already recorded hitherto including that the limiteddirection given by the High Court and not disturbed by this Court was topermit the petitioners to work on the concerned posts and to pay themregular salary as and when the same accrues to them, the plea underconsideration needs to be recorded only to be rejected.

64. Be that as it may, keeping in mind the settled legal position, wehave no hesitation in concluding that the case at hand does not qualifythe test of contumacious, much less wilful disobedience of the order ofthe Court by the officers of the respondents as such. In other words, thebasis on which the contempt action against the respondents in referenceto order dated 4.12.2018 issued by the respondents, has been initiated istenuous. Hence, the same is rejected.

65. We would now revert to the second set of contemptpetitions, which emanate from termination order dated 2.3.2020 issuedby the respondents. These petitions essentially proceed on the allegationthat the respondents committed wilful disobedience of the order of thisCourt dated 15.11.2018 passed in Civil Appeal Nos. 11017-11018/2018in not affording prior opportunity of hearing to the petitioners and similarlyplaced persons despite express direction contained in the said order. Forconsidering this grievance, we may reproduce the relevant portion ofthe order dated 15.11.2018, which reads thus: -14. The limited plea taken before this Court as noted in the firstparagraph of order dated 16[th] March, 2018 was to allow theappellants to re-work the question and answer sheets and revisethe merit list and issue fresh, reasoned order after providingopportunity of hearing to the affected candidates. That optionhas been kept open. It is for the appellants to pursue the same. Inother words, the appellants must, in the first place, act uponthe decision of the High Court dated 28[th] November, 2017whereby the order passed by the Chief Engineer dated 11[th]August, 2017 has been quashed and set aside. Theappellants may then proceed in the matter in accordance

66 (2018) 12 SCC 663 (paragraph 10)

67 supra at Footnote No. 10

Awith law by passing fresh, reasoned order. Indeed, whiledoing so, the appellants may take into consideration theprevious inquiry reports as also all other relevant material/documents which have become available to them. We makeit clear that we have not dilated on the efficacy of the opiniongiven by the experts of the “IIIT Allahabad and IITBKanpur.”

(emphasis supplied)

66. The Court had set aside the termination order dated 11.8.2017issued by the respondents, solely on the ground that it was in violation ofCprinciples of natural justice. At the same time, liberty was given to therespondents to pass fresh order in accordance with law including byundertaking exercise of segregating the tainted from the untaintedcandidates. Indeed, the Court expected that before taking any precipitativeaction against the petitioners, the respondents must afford opportunityof hearing to them. This observation is contextual. It would come intoDplay dependent upon the opinion eventually formed by respondents afterdue consideration of the material collated by them to distinguish the taintedand untainted candidates, was possible or otherwise. Had the respondentsconcluded that it was possible to segregate tainted from untaintedcandidates, they would have been obliged to comply with the directionsEgiven by the High Court and restated by this Court in order dated15.11.2018, to afford prior opportunity of hearing to the petitioners andsimilarly placed persons before passing fresh, reasoned order. However,from the subject termination order dated 2.3.2020, which is speakingorder, it is crystal clear that after due enquiry and taking into considerationall aspects of the matter, in particular the enquiry reports and the opinionFof the experts including final report of SIT, the respondents were of theconsidered opinion that it was not possible to segregate tainted from theuntainted candidates for reasons recorded in that order. We are notinclined to go into the correctness of the said reasons, because it issubject matter of challenge in writ petitions pending before the HighGCourt (as pointed out in Annexure R-29 of the Supplementary Affidavit),filed not only by Assistant Engineers, but also by Junior Engineers, RoutineGrade Clerks and others.

67. We would, therefore, confine our analysis as to whether therespondents were justified in passing subject termination order datedH2.3.2020 without giving prior opportunity of hearing to the petitioners. In

light of the conclusion reached by the respondents in the stated orderdated 2.3.2020 — that it was not possible to segregate the tainted fromthe untainted candidates, in law, it must follow that the respondents couldannul the entire selection process and pass the impugned order withoutgiving individual notices to the petitioners and similarly placed persons.We are fortified in taking this view in terms of the exposition in O.Chakradhar[68] and the subsequent decisions of this Court in JoginderPal[69], Veerendra Kumar Gautam[70] and Vikas Pratap Singh & Ors.v. State of Chhattisgarh & Ors.[71], adverted to in paragraph 12 of thejudgment dated 15.11.2018[72] of this Court while disposing of earlier appealsbetween the parties.68. In other words, since the respondents have concluded that itwas not possible to segregate tainted from the untainted candidatesbecause of the reasons noted in the termination order dated 2.3.2020, inlaw, there was nothing wrong in respondents issuing the said terminationorder without affording prior opportunity to the petitioners and similarlyplaced persons. Had it been case of even tittle of possibility insegregating the tainted from the untainted candidates, which exercisethe respondents were permitted to engage in, in terms of the decision ofthis Court dated 15.11.2018, it would have been different matter. Inthat case alone, the petitioners and similarly placed persons could complainof wilful disobedience of the order passed by this Court dated 15.11.2018.

69. Having said thus, we must conclude that even the second setof contempt petitions in reference to the subject termination order dated2.3.2020 being in violation of direction given by this Court to affordopportunity to the petitioners vide order dated 15.11.2018, must fail.

70. Considering the fact that multiple writ petitions have beenfiled by different groups of affected persons before the igHigh Courtbeing similarly placed persons against the subject termination order dated2.3.2020 and as the same are pending, as aforesaid, to obviate evenslightest of prejudice being caused to the petitioners in those cases, whoare not before us, we refrain from examining the arguments regardingthe justness and validity of the stated order and leave all other contentions

68 supra at Footnote No. 17

69 supra at Footnote No. 48

70 supra at Footnote No. 18

71 (2013) 14 SCC 494

72 supra at Footnote No. 2

Aopen to the parties to be pursued before the High Court in pendingproceedings. Consequently, we would dispose of the transfer petition, aswell as, the writ petition by relegating the petitioners therein includingthe applicants in intervention/impleadment applications, to pursue theirgrievance in the form of writ petitions before the High Court, whichcould be heard by the High Court analogously along with all other pendingBwrit petitions involving overlapping issues to obviate any inconsistencyand conflicting findings regarding the same subject matter in any manner.Indeed, in the event the High Court agrees with the conclusion recordedby the respondents in the stated order dated 2.3.2020, that it is not possibleto segregate the tainted from the untainted candidates, the High CourtCwould be bound by the observations made by us in this judgment. For, inthat eventuality, in law, it would not be necessary for the respondents togive prior hearing or afford opportunity to the petitioners and similarlyplaced persons before annulling the entire selection process and issuingthe termination order under challenge.

D71. Accordingly, while discharging the show-cause notices issuedin the concerned contempt petitions and disposing of all the contemptpetitions, we deem it appropriate to relegate the petitioners in the transferpetition and the writ petition filed in this Court, before the High Court topursue their remedy under Article 226 of the Constitution to assail theorder dated 2.3.2020 with further direction that all petitions involvingEoverlapping issues and referred to in Annexure R-29 of the SupplementaryAffidavit or any other writ petition pending or to be filed, list whereof befurnished by the parties to the High Court, for being heard analogously.We request the High Court to expeditiously dispose of the writ petitions,leaving all contentions other than decided in this judgment, open to theFrespective parties to be raised before the High Court. The same bedecided on its own merits as per law.

72. In view of the above, we pass the following order: -

(1)Show-cause notices issued in the respective contemptpetitions stand discharged. Contempt petitions are dismissed;

(2)The transfer petition stands rejected, as result of whichthe writ petitions referred to therein will now proceed beforethe High Court in terms of this judgment;

(3)The writ petition is disposed of with liberty to the petitionerstherein including applicants in intervention/impleadmentH

applications to pursue their remedy before the High Courtby way of writ petition under Article 226 of the Constitution,if so advised. That writ petition be decided on its own meritsin accordance with law keeping in mind the observationsmade in this judgment along with other pending or freshwrit petitions involving similar issues; and

(4)We request the High Court to take up all writ petitionsinvolving overlapping issues together for analogous hearingexpeditiously. We leave all contentions open except theissues decided in this judgment.

73. There shall be no order as to costs. All pending interlocutoryapplications stand disposed of in terms of this judgment.

Devika Gujral

Petitions disposed of.